Sin Kan Chuen and Others v. The Queen

CACC000647/1979

Head note

Possession of Offensive Weapons s.17 Summary Offences Ordinance: Dwelling House: "Satisfactory Account": Test.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 647 OF 1979

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Coram: Silke, J. in Court

Date of Judgment: 10 August 1979

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JUDGMENT

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1. The four appellants were convicted on the 25th May 1979 each on a separate charge "that on 5th March 1979 at a wooden hut at the roof top of No. 680-2 Nathan Road Kowloon in this Colony you had in your possession (an offensive weapon) and was unable to give a satisfactory account of your possession thereof. Contrary to section 17 of the Summary Offences Ordinance CAP 228. Sentence was passed on 8th June 1979.

2. This is an unusual, and as Mr Reid for the Crown rightly said, difficult case. The appeal is against both conviction and sentence.

3. All the prosecution evidence was agreed before the Learned Magistrate at North Kowloon and it was to the effect that: on 2nd March 1979 a police party went to the flimsy wooden hut on the roof top in Nathan Road. On arrival five males were found sleeping, amongst them the four appellants. Who the 5th person was I do not know.

4. Sin Kan Luen - appellant No. 2 - opened the door a search was conducted and the following items were found:

5. A sharpened water pipe in the bed of Sin Kan Chuen appellant No. 1;

6. A lighter sharpened water pipe and a scoopsided triangular file in the bed of Sin Kan Luen appellant No. 2;

7. A sharpened water pipe - in fact an aluminium pipe with two sharp prongs nailed to its flattened head - and a scoopsided triangular file in the bed of Lau Man Shing appellant No. 3;

8. A water pipe - heavier than the others but unsharpened - in the bed of Fung Chung Ki appellant No. 4.

9. The appellants were arrested and the exhibits seized. These exhibits were before the Learned Magistrate and I called for them and examined them at the hearing of the appeal. Hence the somewhat fuller description of them outlined above.

10. It was further agreed that on the 15th February 1979 a robbery had taken place at the wooden hut when Mr Leung Wan Tsan, who then lived there with the appellants, was threatened by two men with knives, had his Rolex watch taken from him and was forced to sign a cheque in the sum of $5,000. He made a report to the police.

11. I would interpolate here that on the face of it the date the 5th March in the charge was incorrect it being amended to the 2nd March in the Statement of Agreed Facts.

12. Further there were three other charges in the charge sheet concerning the first and second appellants which were apparently tried separately and with which I am not concerned. I do not however know why the police raided the hut in the first place.

13. At their trial the appellants who were represented, pleaded not guilty but specifically admitted all the agreed facts. Mr Sparrow, who appears on their behalf in this Court quite rightly concedes that the weapons are offensive weapons within the meaning of the section. There was no contest on that in the Court below.

14. After the admission of the facts the defence called Mr Leung Wan Tsan to give evidence of the robbery. He stated what was in the agreed facts and went on: "Before they left one they (sic) spoke to me said that I should not report to the police or I would be chopped to death but I did report to the police". And "I advised them to move out for fear of revenge attack" - by "them" he meant - the appellants.

15. The four appellants then gave evidence and each, though in somewhat different form, said they were affected by the robbers threats to Mr Leung and got the weapons for self defence.

16. The first appellant in cross-examination said he had sharpened his pipe two days after the robbery and went on "I put it in my bed in case of attack so that I could ward off a suspected person" and that he sharpened the pipe because "The thieves' knives were very long and I was very frightened". He said he had been told by Mr Leung that the thieves' knives were about 10 inches long.

17. The second appellant gave evidence in a similar vein and said, while there were chisels lying around the hut, that he needed the pipe and the file. "Because I don't know how many would come so I could choose the most suitable". He went on that the file was fairly new and he sometimes used it at work.

18. The third appellant also said he used the file, found in his bed, at work and that he "got the weapons" two days after the robbery. He had made his pronged pipe himself from a tool box in the hut. Again he had them in his bed in case of an attack when he slept "so that he could ward them off".

19. The fourth appellant said he was worried and frightened and he had the water pipe available at his bed side because of the likelihood of the return of the robbers. He did not sharpen his pipe because "I sleep in the upper bunk and if anything happened they would be first". He got the pipe from the tool box in the hut.

20. The first appellant gave his employment as casual decoration worker; the second, his younger brother, the same employment; the third gave his as unlicensed hawker of fish frogs and the fourth as a restaurant waiter. The tool box apparently belonged to the brothers.

21. Mr Sparrow advanced four main grounds of appeal:

22. The fourth ground was abandoned.

23. As to the third ground - section 31 of the Offences Against the Person Ordinance CAP 212 refers to the setting of spring guns, man traps and of other engines calculated to "destroy human life or inflict grievous bodily harm" and the section contains a proviso that it is not illegal to set, between sunset and sunrise, such instruments in a dwelling house for the protection thereof.

24. In convicting the appellant the Learned Magistrate gave a ruling on the 25th May, and following the appeal a Statement of Findings dated the 19th June 1979.

25. In the latter he said, having referred to the items mentioned in section 31, "Other than this such devices are unlawful, and it seems to me as if this section represents the limit to which the law is prepared to go to assist a householder in the defence of his home". I think this to be too narrow and the Crown, rightly, conceded this ground but added that it really had nothing to do with the matter. With this I agree and I do not think that misdirection to have any direct hearing on the real issue here - whether or not a satisfactory account has been given.

26. Counsel had not been able to find any authority on the expression used in section 17. In the English Act, upon which the English Authorities are based, the expression used is "reasonable excuse" as is used in our Public Order Ordinance, section 33, with the extra words "without lawful authority". Mr Sparrow suggested that "Satisfactory Account" conotes, from its wording, a lesser onus on a defendant than does "reasonable excuse". In section 17 the trial court has to be satisfied as the account given for the possession of the weapon: where "reasonable excuse" is used it has to be satisfied that the excuse is reasonable - both on the civil test.

27. I do note however that whereas the penalty under section 33 of the Public Order Ordinance - which applies to a public place - is mandatory imprisonment (with reservations) the penalty under section 17 of the Summary Offences Ordinance is a fine or imprisonment which lends some colour to Mr Sparrow's contention.

28. The Courts have, as I have said, construed the expression "reasonable excuse" strictly - I feel that, on consideration of the use of two expressions, of the difference in penalty and the distraction drawn as between possession in a public place and elsewhere, the expression "Satisfactory Account" falls to be construed less strictly than the "reasonable excuse" provision.

29. Again counsel were unable to direct my attention to any authority in relation to the possession of an offensive weapon in a dwelling house.

30. But I think generally the principles adumbrated in Evans v. Hughes [1972] W.L.R. 1452¹: Grieve v. McCleod [1967] Crim L. Rev. 424² and Pittard v. Mahoney [1977] Crim L. Review 169³ to apply. With this reservation: the less strict construction of the "Satisfactory Account" expression.

31. I reserved judgment until the 8th August 1979 and in the interval my researches unearthed an Australian case which concerned the expression "Satisfactory Reason" which is the nearest I could get to "Satisfactory Account". This Mills v. Brebner [1962] S.A.S.R. 209⁴. There were also two English cases: Jura [1954] 38 C.A.R. 53⁵ which had relevance to the strictness of construction of the phrase "reasonable excuse"; and Bryan v. Mott [1976] 62 C.A.R. 71⁶ which has relevance to the test to be applied on "reasonable excuse" and refers to an excuse honestly put forward but not reasonable.

32. On the 8th August these authorities were brought to the attention of counsel and I thought it proper that they should have an opportunity to consider them. The hearing was adjourned to the 10th August for that purpose.

33. On that day having heard further argument I dismissed the appeals against conviction, allowed the appeals against sentence in part and stated I would give my reasons later as I now do.

34. The test I would apply and as suggested by Mr Reid is threefold: (a) the reasonableness of the thoughts of the appellants: (b) the reasonableness of the thoughts of the reasonable man in the position of the appellants: (c) the view taken by the Courts. This is to an extent born out by Mills v. Brebner.¹

35. It is very much, again as Mr Reid has said, a matter of balancing the interests of the community with the interests of the individual and the test of reasonableness is in part subjective and in part objective.

36. The nature of the weapons themselves must be considered. As the Learned Trial Magistrate said in his Statement of Findings the weapons here were of a kind commonly associated with gangsters and triads - though I hasten to add that he bore in mind, as I do, that there was no evidence before him of any triad link of any previous record of the appellants - quite the contrary.

37. The weapons were clearly weapons of offence - sharpened pipes and files and an exceptionally heavy iron pipe - and in the case of the 1st, 2nd and 3rd appellants so prepared.

38. People are certainly entitled to defend their homes from imminent attack - even from a potential known attack but here at least fifteen days had passed from the time of the robbery to the search. None of the defendants had any knowledge as to when, if ever, the robbers might return. I bear in mind that people in Hong Kong are subject these days to violence, and the threat of it, in their own homes.

39. I think the Learned Magistrate to have applied the right tests having considered fully all the circumstances and the arguments placed before him.

40. As Widgery C.J. said in Evans v. Hughes², as to the time lapse between the attack being considered there and the finding in possession of the offensive weapon:

41. I place no emphasis on the "eight day" period.

42. The Learned Magistrate here held that on the agreed facts the fear of the appellants was justified - he later went on

43. I have considered what the appellants did think as disclosed by the evidence, what a reasonable man of the nature of the appellants would think and the findings of the Learned Magistrate.

44. Cases such as this turn very much on their own facts - in particular here the lapse of time, the lack of any immediacy of a possible attack and the nature of the offensive weapons themselves.

45. People are entitled to defend their homes: they must however give full consideration to the likelihood of an attack, the methods by which their home is secured and the weapons they choose to repell an attack.

46. In all the circumstances I am not persuaded, despite the attractive submissions of Mr Sparrow, that the view taken by the Learned Magistrate was wrong.

47. The appeals against conviction are therefore dismissed.

48. As to sentence, Mr Sparrow submitted they were too high - six months imprisonment imposed on the 1st and 3rd appellants, a Detention Centre Order on the 2nd appellant and six months imprisonment suspended for eighteen months on the 4th appellant. In the circumstances here and particularly in the light of the Learned Magistrate's finding that "For my part I was by no means prepared to hold that their belief in an attack was unreasonable" I think the sentences to be so high as to be excessive.

49. Unfortunately the matter is coloured somewhat by the contents of paragraphs 4 and 5 of the Probation Officer's Report on the 1st and 2nd appellants who are brothers. I am loath to criticise the makers of Probation Reports which as of such immense value to the Courts of this territory but I am afraid that here the Officer concerned went rather further than normal in that he advanced reasons for the possession of these weapons by the appellants which were never part of the prosecution case at trial. I think he was possibly influenced by the other charges, tried separately, which were brought against the appellants. Further he was not the officer who prepared the Reports in respect of the 3rd and 4th appellants and may well not have had the full picture before him.

50. The Learned Trial Magistrate was aware that the reports in respect of the 1st and 2nd appellants were "somewhat coloured" - to use his expression - by the other charges. Apart from that the reports were favourable - as were those on the 3rd and 4th appellants. They all had clear records.

51. I varied the sentences imposed on all four appellants and in respect of the 1st and 3rd appellants substituted a sentence which would effect their immediate release: in respect of the 4th appellant I substituted a fine of $350 for the suspended sentence.

52. The 2nd appellant caused me some difficulty in that the period of detention in a Detention Centre lies at the discretion of the Commissioner of Prisons. I thought he should be immediately released and to effect this I quashed the Detention Centre Order and substituted therefor a fine of $250. I do not pretend to think this to be a "proper sentence" in the ordinary way but as he had already spent two and one half months in custody it was a method of securing his immediate release.

Representation:

David Sparrow Esq. instructed by K. Y. Woo & Co. for 1st, 2nd, 3rd and 4th Appellants

Warick Reid Esq., Crown Counsel, for Respondent

1 Evans v. Hughes [1972] W.L.R. 1452

2 Grieve v. McCleod [1967] Crim L. Rev. 424

3 Pittard v. Mahoney [1977] Crim L. Review 169

4 Mills v. Brebner [1962] S.A.S.R. 209

5 Jura [1954] 38 C.A.R. 53

6 Bryan v. Mott [1976] 62 C.A.R. 71

1 Mills v. Brebner [1962] S.A.S.R. 209

2 Evans v. Hughes [1972] W.L.R. 1452